As a
result of our Memorandum in
Opposition crafted by NYSSPE Legal Counsel,
Mark Kriss, NYSSPE was invited to speak at the DPW Legislative
Committee on May 6, 2019.Representatives of the Long Island chapter, Tom Petracca,
PE and Andrew Haimes, PE addressed the committee sharing the
views of both the chapter and the state societies.The following statement was read by Mr. Haimes.

I am Andrew S. Haimes,
P.E. and I am one of the past presidents of the New York
State Society of Professional Engineers and past president
of the Society’s Suffolk Chapter. NYSSPE represents the
interests of the 25,000 licensees in New York State.

As stated in our memo
dated 4/3/19, the society is strongly opposed to resolution
1312 that would allow the appointment of a non-licensed
person as DPW Commissioner.

It is clear from the
DPW Mission Statement and the County Charter that the DPW
Commissioner is responsible for the supervision, and has the
ultimate responsibility, for all the engineering done by the
County, and for the County by consultants.By State Education Law, this supervision of
engineering and responsibility for engineering must be
provided by a Licensed Professional Engineer.

It is unrealistic, and
even absurd, to think that a DPW Commissioner could
effectively pass all of that engineering supervision and
responsibility to others in the department.

The legislative intent
of the bill is stated to broaden the qualifications
for the consideration of potential candidates for DPW
Commissioner.
What the bill actually accomplishes is to open the position
to unqualified candidates.There are approximately 25,000 licensed Professional
Engineers in NYS.Has the County reached out to them?It may take a while, but I would think the County
could find a licensed PE who can also handle the
administrative duties required of a Commissioner.

As a result of our efforts, the motion to install a Non-PE in
the role of DPW Commissioner has been tabled and the motion to
amend the wording in the charter has also been tabled.

NYSSPE February 2015 Position
Statement on Design Build Budget Proposal

Good Afternoon Jaclyn,

As we have received many questions
from our members about the current Design Build legislation,
therefore we have posted an updated position statement on
our website, which was drafted by Mark C. Kriss, Esq., The
New York State Society of Professional Engineers (NYSSPE)
Legislative and Legal Counsel.

The following is an introduction to
the position statement which discusses the Design Build
process with respect to both the private and public sector.

Private Sector

Design Build (an alternative project
delivery methodology used in lieu of Design-Bid-Build) is
permitted to be employed on private sector projects in New
York State, provided that the scope of design services and
the amount to be paid for such services is clearly set forth
in a contract executed by the project owner, the contractor
and the design professional. While many, particularly in the
general contractor community, maintain that the use of a
three-way contract is not required and that a general
contractor can contract with a design professional on
project owned by a third party, the NYS Education Department
unequivocally maintains that this type of an arrangement
runs afoul of the State Education Law and Rules governing
the design professions. A design professional should
consider the potential for professional disciplinary action
(e.g. fee splitting and aiding and abetting the illegal
practice of engineering) before participating in a Design
Build project.

Public Sector

With regard to the public sector
projects in 2011 legislation was enacted on a pilot basis to
permit specially named state agencies to utilize Design
Build. NYSSPE along with others in the design professional
community, as well as the State Education Department, voiced
concern regarding the failure of the 2011 legislation to
expressly include quality assurance safeguards in the
legislation. The original statute expired in early December
2014 (with an exemption for ongoing projects) and new
legislation has been proposed by Governor Cuomo as part of
his executive budget. The Society has issued, and broadly
disseminated, a position statement which renews our concerns
regarding the 2015 Governor’s Budget Proposal which proposes
some amendments to the pilot program. A copy of the NYSSPE’s
position statement is set forth below.